Cover of Louis D Brandeis and the Making of Regulated Competition
A new Brandeis book has just come out: Louis D. Brandeis and the Making of Regulated Competition, 1900-1932 by Gerald Berk. It’s about Brandeis’ belief that it was competition and not monopoly that should be regulated and how that led to the formation of the Federal Trade Commission.
For more information, go to the page for it on the Cambridge University Press site.
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Brandeis on the Daily Show
Jon Stewart used (and mocked!) Brandeis’ most famous quote repeatedly last night on a segment about transperancy in the Obama White House. Here it is for that 1% of the population who doesn’t have basic cable.
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Harlan’s dissents in Plessy v. Ferguson and the Civil Rights Cases are well known, but the June 2009 issue of the ABA Journal has a story about Harlan’s role in another little known, but significant, civil rights case: United States v. Shipp.
In Chattanooga, Tennessee in 1906, a black man named Ed Johnson was accused of raping a white woman. Barely escaping a lynching, he was found guilty and sentenced to death by an all white jury despite overwhelming evidence of his innocence. His white lawyers gave up at this point, but two black lawyers who had assisted at the trial appealed the verdict all the way up to the Supreme Court. The judge who heard the lawyers and granted their appeal? John Marshall Harlan.
Harlan’s decision so enraged the citizens of Chattanooga that they, with the collusion of the sheriff, lynched Johnson for real this time before the case could be heard by the Supreme Court. The Court, in turn was enraged by the crowd’s actions and indicted the sheriff and 8 others for contempt, which led to the first and only criminal case heard by the Supreme Court.
United States v. Shipp isn’t technically a civil rights case as it dealt primarily with federal habeas corpus. Still it’s significant in that it marks the first time that a black lawyer was lead counsel in a case for the Supreme Court. Also, it foreshadows the fight between the Supreme Court and the southern states that occurred after Brown v. Board of Education 50 years later. It’s interesting to speculate how history would have differed if another judge other than Harlan had heard the appeal. Would any of the others have been outraged and courageous enough to grant the appeal?
The whole article is available on the ABA Journal’s website.
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The Louis D. Brandeis School of Law at the University of Louisville occasionally awards the Brandeis Medal to people who have made significant contributions to individual liberty and public service. The 2003 recipient was Ruth Bader Ginsburg. At the award ceremony, Bader Ginsburg gave the speech “From Brandeis to Breyer: Is There a Jewish Seat?” Unfortunately, I can’t find a copy of the speech online, but it was printed in the Brandeis at 150 book.
Bader Ginsburg has recently made the news with a couple more Brandeis-related appearances. In December 2008, she presided over a re-argument of Muller v. Oregon, an event organized by the Supreme Court Historical Society to commemorate the 100th anniversary of that landmark case. She also on two occasions (September 12, 2008 at the Willamette University College of Law and on February 13, 2009 at Rutgers-Newark Law School) gave a speech on the history of the case and its impact over the years.
It’s hard to think of anyone more suited to give that speech, since she’s not only a Supreme Court justice, but also someone who life was indirectly affected by the Court’s decision. While celebrated as the case that introduced “The Brandeis Brief” and the use of social science statistics in legal arguments, it has also been heavily criticized over the years as the genesis of a number of paternalistic laws that kept women from applying for a number of jobs. Bader Ginsburg outlines the impact Muller had on 20th century labor rights and legislation for both men and women, a lot of it negative.
So is Bader Ginsburg against the decision reached in Muller? Having been given the chance to reverse the decision in the re-enactment, did she take it? I’ll let you read that for yourself. The Legal Times Blog has an account of the re-argument. It sounds like it was a lot of fun. I would have loved to have been there.
You can read more of the reasoning behind her decision in her speeches. The Willamette version of the speech has been reprinted in the volume 45, third issue of the Willamette Law Review. The Rutgers version of the speech can be found online here.
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New Brandeis Portrait Unveiled
A new portrait of Brandeis has been painted and it had its public unveiling here at the Louis D. Brandeis School of Law at the University of Louisville. Maine artist Rob Shetterly has been painting a series of portraits he calls “Americans Who Tell the Truth.” Each painting is a portrait of an American with a quote of theirs etched into the painting. Past subjects have included Rachel Carson, Wendell Berry and Susan B. Anthony. A number of his portraits have been collected in a book that won a couple awards. He was in Louisville last year displaying some portraits when he met Laura Rothstein who suggested he add Brandeis to his series. He apparently liked the idea — the portrait is a striking piece of work.
Mr. Shetterly has his own website and you can view many of the potraits in the series there. Unfortunately, the Brandeis portrait isn’t there yet, but you can see it in this University of Louisville press release. See if you can make out what quote he used.
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It’s the week after finals here at the University of Louisville Louis D. Brandeis School of Law and the place is still recovering from the previous two weeks. Professors are scrambling to get their exams graded by the deadline while everyone else works to get the place back in shape. Yesterday, I found something that had still been untouched by the cleaning crews that I thought would make an interesting momento mori of this year’s exams.
Brandeis and his wife Alice are interred in front of the school and a tradition has developed over the years of students placing pennies over the Brandeis’ markers during finals week to ensure good luck. The tradition had nearly died out a few years ago, but when self-described “Brandeis groupie” Laura Rothstein arrived here, her proselytizing for Brandeis began to pay off, both figuratively and (in this case) literally. This year, the pennies for Brandeis tradition came back with a vengeance, as this close up illustrates:
The tradition seems to have evolved. There are still some pennies, but mostly now it’s quarters and one person even threw in a Sacagawea dollar coin. Is this inflation? Or just increased desperation? With the job market the way it is this year, maybe a few graduates were asking for luck finding a job. I was also amused to find that a couple cheapskates had chipped in. There were a couple buttons and rocks (and an after-dinner mint!) thrown in with the money. I’m pretty sure that’s not the way to ace your exams.
One final note: One of things Laura always mentions in her presentations on Brandeis was his professed fondness for animal crackers. Apparently this is something else the students have taken to heart. If you look closely at the picture you can see the shredded remains of a couple boxes of animal crackers–all that was left of one student’s offering after the campus’ always ravenous squirrels got ahold of it.
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Earlier in this blog I mentioned how the NY Times had posted their articles that had fallen in the public domain and how that was a good resource for contemporary newspaper articles on the two justices. Now that research has gotten even easier. CQ Press has just released The New York Times on the Supreme Court 1857-2008, a compendium of articles, editorials and analyses of Supreme Court decisions. It is not a complete collection; rather just an overview of the most significant decisions.
Two articles give a good impression of what the justices were like on the bench. One article has a lengthy exchange between Brandeis and a lawyer during oral arguments in Near v. Minnesota that give an interesting look into Brandeis’ views on the free press.
Then there is this, from an article about Harlan delivering his opinion in Pollock v. Farmers’ Loan & Trust Co. , which gives a great impression of what a Harlan’s dissents were like:
“Justice Harlan almost at the beginning of his opinion began to gesture and to address his remarks forcibly to the members of the bar. Warming up, he finally turned deliberately to the Chief Justice, who sits next to him, and gesticulated almost in his very face. Justice Harlan’s opinion throughout had a caustic tone almost of sarcasm.”
The book is, of course available from Amazon, but if you want to save money, you can use WorldCat to locate the nearest library that has a copy.
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Brandeis scholar Mel Urofsky had an op-ed piece in the February 6, 2009 New York Times talking about how Brandeis’ book Other People’s Money relates to the current banking crisis. You can read it here:
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Fun With Statistics
HeinOnline is a legal database that among other things has an extensive database of court opinions and legal journal articles. Recently thay began posting citation analysis to the articles and opinions in their database. They also have a blog in which they occasionally publish interesting findings from their collection.
For instance: What is the most cited article in their database? If you guessed Brandeis’ “Right to Privacy,” you’d be right. It was cited (as of this writing) by 2,902 other law journal articles. (BTW, the second most cited article is “The Path of the Law” by Brandeis’ bud, Oliver Wendell Holmes, Jr.)
Who is the most cited author in the database? If you guessed Brandeis, you’d be wrong this time. It’s Richard Posner, whose 251 articles have garnered 12,586 citations. Interestingly, HeinOnline lists 9 articles by Brandeis for a total of 2,928 citations, which means that his other 8 articles have only garnered 26 citations between them. It’s also interesting to note that “Right to Privacy” by itself has garnered almost one-sixth the number of the citations to all of Posner’s articles. But then, Brandeis did have a 100 years head start, so it’s probably better not to read too much into that.
What is the most cited Supreme Court case (from articles, not other cases)? Brown v. Board of Education (16,868 cites), followed closely by Roe v. Wade (15,991 cites). Brandeis makes an appearance in the top 10 cases with Erie Raliroad Co. v. Tompkins, while Olmstead is the 25th most cited case. Plessy v. Ferguson is the 12th most cited case, which I would imagine is due in no small part by Harlan’s dissent.
All of this is nice fun for legal historians and trivia buffs, but there is a practical use for this data as well. All law professors are familiar with the annual process of proving their worth to the Dean and justifying a raise. HeinOnline now makes that a lot easier. Simply do an author search under your own name and pull up a list of all of your articles. Under the citation for each article will be a line listing how many times that article has been cited. (You can even click on the line to see what those articles are.) If that doesn’t prove how vital your research is, I don’t know what will.
A couple caveats. HeinOnline has licensing agreements with most law reviews, but I don’t think they have them all. Obviously, that will affect the accuracy of the count of citations. There can also be some lag time between an issue’s publication and its inclusion in HeinOnline. Again with the accuracy… Still, no method of looking citing articles is going to be 100% accurate, and I can’t think of an easier way of doing it.
HeinOnline is a well known database, and I would imagine that most, if not all, academic law libraries have subscriptions to it. If you don’t know how to access it, talk to your nearest librarian. The full lists of most cited authors, articles and cases are published on their blog, which is available to everyone and can be found here.
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I realize I’m arriving a little late to this party, but I just found out about this article. Last year, Valparaiso professor Robert Blomquist published “Thinking About Law and Creativity: on the 100 Most Creative Moments in American Law” in 30 Whittier Law Review (2008) 119. Jumping off from a Posner decision in U.S. v. McKinney, Blomquist discusses the history of innovation and creativity in law — which is by its very nature is a conservative profession. He follow up the discussion with a tentative list of the 100 most creative moments in American law. The top 10 has what one would expect: the Constitution, the Declaration of Independence, the Bill of Rights, Marbury v. Madison, etc. After that, though, the list gets real interesting.
Brandeis makes two appearances: his “Right to Privacy” article is #75, while his opinion in Erie Railroad v. Tompkins is #94. Harlan is represented (sort of) at #20: Plessy v. Ferguson, although Blomquist isn’t really citing Harlan’s dissent. Instead he cites the majority opinion as an example of what he calls negative creativity: where creative means were used to reach a deplorable outcome.
I’m not sure how instructive lists like this are, but they make for fun reading by providing grounds for arguments and head scratching bewilderment. And Blomquist’s list doesn’t disappoint in either area. I have two main objections to the list: one general and one specific. Blomquist specializes in environmental law and he lets his enthusiasm for the subject get the better of him. I count at least 20 items that relate to the environment. I believe protecting the environment is extremely important, but devoting 20% of a list that’s supposed to represent American law as a whole is over the top. Blomquist says that he solicited the opinion of over 400 law professors for examples of creative legal acts. I wonder how many of them chose Rachel Carson’s The Silent Spring (#43) or Al Gore’s An Inconvenient Truth (#68)? Even after reading his justification for including Earth Day (#63) I still don’t see how it qualifies as a legal event.
My other complaint is one of omission. How could Brandeis’ brief for Muller v. Oregon not make the list? Brandeis’ emphasis of social science data over legal precedent forever changed how law was practiced? Without Muller, Brown v. Board of Education (#10) might not have ever happened. (Interestingly, Blomquist does include Lochner v. New York as another example of negative creativity, which Muller was instrumental in discrediting.)
Despite my carping, I enjoyed the list very much and judging from the comments on the article in the blogosphere, a lot of other people have as well. Blomquist says the list is tentative and that he will incorporate people’s suggestions into the book he is planning on producing. It’ll be interesting to see if the Brandeis brief makes the final cut.
Blomquist’s article is available on SSRN.
Brandeis’s brief for Muller v. Oregon is also available online.
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